Lead Opinion
1. “Where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a сomplete waiver of all defects in the service. which the counsel signing it is legally competent to waive, whether such signing is dоne before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinctly and specifically states that it is not to be construed as waiving some particular defect then pointed out by him.” Acts 1911, p. 150, sec. 4.
(a) Accordingly, where a bill of exceptions was certified on December 27, 1911, and the following acknowledgment of service was signed by counsel for defendant in error: “Due and legal service of the within bill of exceptions acknowledged; copy and all other and furthеr notice or service waived, this 20th day of - 1911,” the writ of error
2. The court did not err in refusing to grant a nonsuit.
(o) It was not cause for nonsuit that most of the items in the account for material alleged to have been furnished by plaintiffs for the construction of the building bore date more than three months bеfore the date of recording the claim for lien, it appearing that some of the later items of the account wеre dated within three months from the date of the record, and there being evidence tending to show that the whole amount was covered by one and the same contract between the plaintiffs and the contractor. New Ebenezer Association v. Gress Lumber Co., 89 Ga. 125 (
3. The action was brought by materialmen against a contractor and the owners of certain realty, for the price of certain material alleged to have been furnished to the contractor and used in the erection of a building on the land of the other defendants, аnd to establish a lien on the premises for such material. The court instructed the jury as follows: “You are not concerned with whether or not Sebert [the contractor] finally finished the contract with these people; whether he abandoned it or nоt is immaterial, as between Randall Brothers [the plaintiffs] and these people [the other defendants]; to set up this lien, whethеr or not Randall Brothers furnished this material is the question that you look to.” The only assignment of error upon this charge was that it was еrroneous. Whether the completion of his contract by the contractor was material or not might depend upon thе evidence in the case. The extract from the chaz’ge excepted to does not purport to be a statеment of an abstract pz-inciple of law, but simply amounts to an instruction that uizder the evidence in this particular case it wаs immaterial whether the contractor had completed his eozztract. So treated, a general assignment of errоr upon it presents no point for adjudication. (Evans, P. J., and Lzzmpkin, J., dissent from this z-uling.)
4. The court erred in permitting an employee of the рlaintiffs to testify that the contractor izzformed him that the material bought from the plaintiffs was to be used in constructing the building upon which рlaintiffs sought to establish a lien. This evidence was objected to by the owners of the building, upon the ground that they were not presеnt when the contractor made such statemezzt. The evidence in behalf of the plaintiffs, tending to show that the material that was sold to the eon-tractor went into the building, was not at all conclusive, and the error in the admission of the hearsay testimony above referred to was cause for a new trial.
5. The ground of the motion for new trial complaining of the admission of two letters of given dates, written by the contractor to the plaintiffs, was not well taken, for the reason that neither the letters nor thе substance of, their contents were set forth in the motion.
6. There was evidence tending to show that the contract betweеn the contractor and the owners for the erection of the building had been carried to another State by the contrаctor and was there in his possession at
7. There is а recital in the bill of exceptions that a demurrer to the petition “came on for a hearing on the -day of-19-, and after, argument on the same it was overruled;” that plaintiffs in error presented to the judge exceptions pendente lite to such ruling, which were duly certified and ordered filed as part of the proceedings in the case; that such exceptions pendente lite were recorded on the minutes of the court as provided by law; and that error is assigned upon such exceptions pendente lite. Counsel for plaintiffs in error in this court suggested a diminution of the record, in that it did not contain the exceрtions pendente lite; whereupon this court ordered the clerk of the trial court to send up a certified copy оf the exceptions pendente lite. In response to such order the clerk certified that no exceptions pеndente lite were on file in his office, that he had no recollection that any were ever filed therein, and that there is nо record of any exceptions pendente lite in the case in his office. It appears from the record that thе case was tried in the superior court on March 23, 1911, and that the motion for new trial was heard on December 15, 1911. The bill of exсeptions was certified on December 27 thereafter. It follows that in the absence of exceptions pendentе lite, duly filed and preserving the point as to the overruling of the demurrer to the petition, the assignment of error on that point in the bill of exceptions came too late; and accordingly, this court can not decide whether the trial judge erred in overruling the demurrer.
Judgment reversed.
Dissenting Opinion
dissent from the proposition stated in the third headnote. They think that the assignment of error upon the charge therein quoted is sufficient to raise a question for decision by this court, and that it is error to decline to pass upon it.